Why a Filibuster Rule Change Won't Turn the Senate Into the House

July 12, 2013

Harry Reid’s threat to change filibuster rules so executive nominees will only require 51 votes for approval has touched off dire warnings that doing so would put the Senate on a slippery slope to becoming more like the House. Here is Politico warning of that possibility: “If the filibuster goes, the Senate would lose a crucial check on majority rights—and it could start looking very much like the House, where the majority always gets its way.” Here’s Richard A. Arenberg, from the Washington Post: “The use of majority control would prove irresistible and the Senate would soon operate much like the House of Representatives, where the majority controls, the minority is seldom consulted, debate is limited and floor amendments often are not permitted.” And so on.

I’m not so convinced. First off, let’s note just how historically bananas Republican use of the filibuster had to be for Reid to make even this modest change. Political scientist Jonathan Bernstein, writing for the Post, explains it best:

McConnell, ever since January 2009, has treated filibusters as routine and universal. That’s brand new. There have been filibusters of executive branch nominees before, but only in rare cases. Almost all the time, under all previous presidents, the Senate had a simple majority hurdle, not a 60 vote hurdle, for executive branch appointments. Nominees didn’t have to get cloture; they only needed to get a simple majority.

In other words, the change Reid is proposing is so modest that you could fairly construe it as a return to the status quo. (Bernstein goes on to remind us, as does Greg Sargent, that the GOP is blatantly obstructing President Barack Obama’s nominees—like Richard Cordray for the Consumer Financial Protection Bureau—because they object to the government agencies those nominees would run.) It wouldn’t interfere with the minority’s ability to prevent a piece of legislation from coming to a vote, which members can do today without even staying on the Senate floor. And it doesn’t threaten the talking filibuster, of “Mr. Smith Goes to Washington” fame, which Senator Rand Paul used to such spectacular effect this spring.

Those forms of filibuster are plainly safe from Democrats’ interference—they are not going to go the way of the dinosaur once Reid gets a taste of majority rule over executive nominees. At the start of this congress, when Reid promised to reform the filibuster rules a first time, he was unwilling to take on the talking filibuster. By late January, he had given up on sweeping changes to the filibuster altogether, opting instead for tiny changes that wholly preserved the minority’s say in moving legislation and executive nominees to a vote. (There’s good reason to argue that he made, essentially, no changes.) Moreover, there are powerful opponents of changing the filibuster within his caucus. When liberal senators like Jeff Merkley were pushing for wholesale filibuster reform, Sen. Chuck Schumer was simultaneously meeting with Sen. John McCain to scuttle their efforts.

As to whether the filibuster is safe from a Republican majority, a Democratic senate staffer yesterday emailed Wonkblog to warn that if Reid uses the nuclear option, it will give Senator Mitch McConnell political cover to do the same if the GOP takes the majority. Indeed, since Reid threatened them with the nuclear option, at least one Republican, Senator Lamar Alexander, has daydreamed about what things might then look like with the Senate under their control. As he told Politico, “The more we think about it, the more attractive it becomes”—the prospect of being able to undo Obamacare and Dodd-Frank and pass items like national right-to-work-laws.

And yet the filibuster has survived under GOP rule before. The last time Republicans were in the majority, they came perilously close to deploying the nuclear option buttwice, in 2003 and 2005, for very similar reasons that the Democrats are considering its use now. (Back then it was to stop obstruction of the George W. Bush’s judicial nominees. In 2005, when they came closest, a compromise hammered out by the bipartisan Gang of 14 averted its use.) Yes, you could envision that the history of the nuclear option will be written like this: The GOP invented it, the Democrats used it to install a few executive nominees, and the Republicans took it even further when they returned to the majority, to gut minority representation altogether. And there is an outside chance that the majority will be returned to the GOP as soon as November 2014. And yet their caucus will look fairly different than the Democrats’—half of the 54 senators in Reid’s caucus have never served a day as members of the minority, which is a big part of what has spurred them to demand the rules changes. In a McConnell majority, at least initially, there wouldn’t be more than five or six rookies, probably not enough to overwhelm the GOP equivalents of Dianne Feinstein, Mark Pryor, Max Baucus, Jack Reed and Carl Levin—all senators who helped talk Reid out of strident senate rule changes earlier this year.

How nervous we get picturing a Senate that “becomes more like the House” depends heavily on what we mean by that. Those words sound ominous partly because of the House’s current, profound dysfunction, which doesn’t have a causal relationship to House rules. As my colleague Alec MacGillis pointed out on Wednesday, the House’s disastrousness stems from who is in charge—a party that has abandoned their responsibility toward governance in favor of the politics of nullification.

So let’s not pretend that Reid’s choice to eliminate the filibuster in one narrow instance would organically, inevitably lead the Senate to eliminate the filibuster altogether. Those are separate choices in which the majority party will perceive separate stakes. As for whether the Senate could come to resemble their malfunctioning counterpart, it would be a false equivalence to make believe that that’s the rules’ fault.

Molly Redden is a staff writer for The New Republic. Follow her on Twitter @mtredden.